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The Senate Confirmation Process: Can Congress and the President Do Better?

Participants: Gary Andres, vice chairman for public policy and research, Dutko Worldwide; James F. Flug, director, Harvard Law School Washington Semester; Sarah A. Binder, professor of political science, George Washington University; and David D. Kirkpatrick, Washington correspondent, The New York Times.

"Getting a presidential nominee through the Senate confirmation process is a lot like moving a piece of legislation through Congress," according to Gary Andres who has helped prepare nominees in both Bush administrations. "It involves all the same difficulties and procedural hurdles and maneuvers as major legislation, including log-rolling, polarization and partisanship."

Andres, now research vice chairman at Dutko Worldwide, was the lead-off panelist at a Congress Project seminar March 16 on presidential nominations and he Senate confirmation process. "It used to be that senators did not oppose presidential nominations on policy grounds," Andres said, "because Members believed the president was entitled to have his own people carrying out his policies. The senators' job was to determine whether the nominee was professionally qualified and ethically fit for the job. But all that has changed as senators and interest groups began grinding their political and policy axes at confirmation hearings. Andres characterized senators' actions (or inaction) over nominations as the "five deadly sins:" (1) avarice: the intent of senators to get something out of the process such as a special favor for their States; (2) Angling: fishing for the politics of personal destruction with the intent of bloodying-up nominees enough to at least cripple them and make them less effective when they take office; (3) afterthoughts: the nominees being the victims of collateral damage from a larger battle a senator may be waging against the administration; (4) antipathy or payback time for previous slights to the senator or party; and (5) apathy: senators are often too busy to even meet a nominee or pay attention to important confirmation hearings in their own committees.

James Flug, who worked as counsel to Senator Ted Kennedy (D-Mass.) from 1967-73, and 2003-2006, offered the perspective of someone involved in the Senate confirmation process at two distinctive periods, separated by 30 years. During those two periods, he worked on the nominations of 13 people to the Supreme Court, including the most recent battles over Harriet Miers, John Roberts and Samuel Alito. Flug said the biggest difference was that 30 years ago most things were done in a bipartisan way because the Democratic party had southern conservatives and northern liberals, so it was often necessary to reach across the aisle for help if you wanted to get anything done. Flug said that did not mean all was smooth sailing for presidents of either party. President Lyndon Johnson lost in his attempt to elevate his friend, Justice Abe Fortas to be chief justice; and President Richard Nixon lost two successive attempts to fill one vacancy on the Supreme Court. Flug said when the Founders were considering how government officials should be appointed, the president did not come into consideration in the early options discussed. They finally decided to give the president the appointment authority for cabinet and court nominations, subject to the advice and consent of the Senate. "The Senate was intended to be a more thoughtful and deliberative body than the House which was expected to be more subject to the ebb and flow of popular opinion." Flug said the advice and consent role had become more important in recent years. many senators learned about the Senate as sons of senators, while others learned about the important role of the Senate once they got there. It was these institutionalists who exerted a calming influence on the other branches. Flug said the confirmation process seemed to work better 30 years ago because there was more bipartisanship and more institutionalists. Today it does not work as well because things are much more partisan and polarized.

Sarah Binder, a professor of political science at George Washington University presented an original paper at the seminar on the politics of lower federal court nominations. Her data show a marked increase in recent years in the amount of time it takes to confirm a nominee both at the district and appeals court levels. She did not accept the explanation of some that "there's nothing new under the sun," or the alternative "big bang" theory that one event accounts for the increasing difficulties in the process. Instead she attributed to a combination of factors including the growing realization over the years that court judges were becoming public policymakers, social actors, and therefore that their decisions could have far-reaching implications for political parties and interest groups. Congress therefore has more incentives for carefully scrutinizing nominations and an increasing ability to do so. Senators who oppose nominees on political and ideological have the institutional tools of "blue slips" or veto power over court nominees from a senator's state; "holds" or the ability of a single Senator to at least delay a floor vote on a nomination; and "filibusters," or prolonged debate which, at one time, were only used for legislation and not for nominations. These multiple veto points are used for a variety of reasons, not always out of direct opposition to a nominee. Senators often want to get something in return for allowing nominations to go forward. Binder predicted there would be numerous judicial openings during President Barack Obama's tenure because many judges first appointed by President Carter have been waiting for a Democratic president before they stepped down from the bench. She also predicted an attempt might be made to expand the bench (create more federal judgeships), and that polarization over nominations would remain notwithstanding Obama's appeal for more bipartisanship.

New York Times reporter David Kirkpatrick covered the Supreme Court nomination battles over White House Counsel Harriet Miers (who eventually withdrew her nomination over opposition within her own party), and then of John Roberts and Samuel Alito. Kirkpatrick said every important nomination is like a "treasure hunt," with reporters and Senate committee staff looking for important nuggets to use for or against a nominee. Interest groups on both sides of the political spectrum are already organizing and doing in depth research on the inevitable openings that will occur on the federal bench. Kirkpatrick thought Supreme Court nominations are of value not only to the Senate but to the American people as they learn more about important constitutional issues and policy problems. "They are also a heck of a lot of fun to cover as a reporter." While much is made of such small things that turn up, whether tax or nanny problems, Kirkpatrick said, the real aim of those who use them is usually for larger, ideological reasons. All the panelists agreed that the vetting and confirmation process for nominees had become far too personally intrusive and protracted, and that this in turn would make it increasingly difficult to find highly qualified people who would want to subject themselves to such a process. But no one thought it was realistic to expect any dramatic change for the good in the process. Political parties and interest groups will not go away, and they all have their reasons to find as much about a candidate as possible before allowing a vote on confirmation to occur.

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